The new UK Bribery Act 2011
The law comes into force on 1 July 2011 and relates to any company that carries on business in the UK. The phrase ‘carries on business’ is to be interpreted with a wide but common-sense approach and will encompass businesses that have a substantial connection or do business in the U K, even if they are incorporated outside the U K.
The newly issued guidance from the UK Government describes how the law will be applied and what companies should do in order to avoid prosecution. By taking steps now, companies can make certain that they do not face prosecution under the Act because of the unlawful behaviour of their employees, or other people associated with the company.
Until now the UK has had numerous bribery laws but these have all been swept away and replaced with four new punishable offences. Two of the four relate to the offer and acceptance of bribes, which includes financial and other advantages,(Sections 1, and 2.). One new offence relates to bribing foreign public officials in the course of business,(Section 6). The most important section, (Section 7), makes it an offence for a business to fail to prevent an ‘associated person’ from committing bribery intended to benefit the business. Before now there was no similar offence in the Foreign Corrupt Practices Act.
It is very important to note that it is a defence to a charge of bribery for the company and/or its officers to show that sufficient anti-bribery procedures were in force and active when the ‘associated person’ committed the act complained of.(Section 7.2). I have outlined the measures to be taken later in this article.
The main worry for businesses having a close connection to the UK is that the Act provides that an offence will be committed in any place in the world, even by a non-employee, if that person is associated with the company in some way and provided that part of the bribery scenario is undertaken by a person with a close connection to the UK. This means any business which is a UK company, or which carries on business in the UK, can be prosecuted despite the bribery taking place outside the UK by a non-employee. (Section 12)
The guide says that prosecuting authorities will take a common sense approach in deciding whether a UK organisation is carrying on business, or a foreign company has a UK presence, and the court's will make the final decision on the issues. Note that a listing on the London Stock Exchange, or having a subsidiary company in Britain, is not of itself sufficient to satisfy prosecution criteria.
Note also the following points from the guidance:
- A payment to ensure routine government action may be considered bribery.
- Hospitality and spending on promotion may be bribery if it is unreasonable and out of proportion for ordinary business purposes.
- The term ‘associated persons’, includes both employees and a range of persons connected to the business, e g. foreign consultants. The title of the person in the organisation is irrelevant. They may be described as agents, subsidiaries, suppliers, contractors, or any other descriptions.
- Bribing foreign officials can include investments requested by foreign governments relating to the award of public contracts.
- The phrase ‘improper performance’ has been used as a test of whether bribery has taken place. This goes back to the old UK test of what is reasonable. In other words what would a person in the UK expect as normal business practice. If what was done does not comply with this test then it may be said that an offence under the Act has been committed. This means that local, non U K, business practices must be ignored, or avoided, if they are contrary to how a person in the UK would expect business to be carried on - unless the behaviour is written into the constitution, law, or judicial decisions of the country where the action took place.
- The guidance notes say that where evidence is of bribery exists the prosecutors are to bear in mind general public interest in their attempts to discourage bribery. For this reason they will probably take action in the more serious and larger scale offences, especially the high profile cases which will generate the most publicity to get the message out to other companies. It is probably also fair to assume that prosecuting the biggest offenders first prioritises the prosecutor’s resources.
There are six principles for businesses to follow to implement the anti-bribery procedures mentioned in the Guidance notes in order for the business to be described as having adequate safeguards in place. These Anti-Bribery Procedures can be used as a defence to a charge brought under the Act:
- Proportionality. - The business anti-bribery procedures should be proportionate to the risks, nature, scale, and complexity of its commercial activities.
- Top level commitment. - The senior managers must commit and intend to stop people associated with the business from committing bribery and in should ensure that zero tolerance culture in relation to potential bribery.
- Risk assessment. - The business should periodically research, document and assess the bribery risks it faces, including internal bribery, plus the risks of associated persons committing bribery.
- Due diligence. - The business should apply the appropriate level of due diligence to its people who will face the risk of being involved in bribery. In other words, different levels of due diligence apply to different people and different situations within the company and those is associated with it.
- Communication and training. - Businesses must make certain that their anti-bribery procedures and policies are part of the business and that they are understood by everyone in the business and associated with it. This may include a level of training for staff and others, appropriate to the bribery risks faced.
- Monitoring and review. - The business must have a continual process of monitoring its procedures in place to prevent staff and associated persons committing bribery and must improve the process where it has been shown to be insufficient to stop bribery.
The Guide has been issued now, before the Act comes into force on 1st July 2011, to give companies and businesses the opportunity to put the necessary procedures in place to minimise the risk of Bribery and to avoid prosecution.